Hi - my name is XXXXX XXXXX X'X a Bankruptcy attorney here to assist you.
Are you asking about filing a Bankruptcy for your business or for yourself personally (or both)?
Does your business own significant assets?
Does your business have a market value (i.e., could it be sold)?
only asking about bankruptcy for the business, the only significant assets the business owns are incumbered and the business currently has a negative net worth of $9000
Thank you for your response.
Based on the information you provided, it is unlikely a Bankruptcy would help.
There are 2 types of business Bankruptcy - Chapter 7 and Chapter 11.
With a Chapter 7, assets are sold to pay creditors, and the business usually closes as a result.
With a Chapter 11, creditors must agree to take less than what is owed.
So if our assets are incumbered(but not upsidedown) can the court order us to sell them and pay the plaintiff with anything left over after paying off whats owed to our other creditors?
The judgment holder would be able to place a lien on your assets. The judgment holder would be the second lienholder for the assets that are already encumbered.
Regardless of the amount of the first lien?
The judgment holder would be able to force the sale of any assets that have equity.
So even if there's equity in an asset above and beyond the lien a judgement would not force us to sell it?
Yes - but if the first lien is more than or close to the market value of the assets, the judgment holder would not be able to force the sale of those assets.
The judgment holder can force the sale of assets only if they do have equity.
(Equity means the assets are worth more than what is owed to the first lienholder.)
Ok I think I understand but just to clarify in example if we have a company vehicle that's worth $10,000 and a lien against it for the same amount a judgement from a different creditor cannot force the sale of the asset, but if the lien on the same vehilce is only $2000 because we've paid off most of the debt then the judgement can force us to sell the asset and pay anything we get above the $2000 towards the judgement?
Yes - that is correct.
ok great thanks for all your help!
Have another question relating to the last one. If we are forced to sell our assets that have a lien on them but still have equity who determines the value of the assets? A third party appraiser? And who pays for the appraiser?
In most cases, the assets are sold at an auction to the highest bidder (regardless of the actual worth). A judgment holder can use an appraiser to help determine the value of the assets - to help determine whether or not it would be worthwhile to have an auction, because it would not make sense to pay for an auction if the assets cannot be expected to sell for more than what is owed to the first lienholder (in addition to the cost of the auction - often approximately 5%).If the judgment holder uses an appraiser, the judgment holder has to pay for the appraiser.
In relation to the last few questions if their is a lien already on assets our business owns and a judgement holder seeks to put a second lien on them, who determines and how is it determined that there is or is not equity in the asset? The court?
So in example again if a asset is worth $10,000 and the first lien is for 15,000 the judgment holder can still put a second lien on the asset but cannot force the auction of it? Or they can still force the auction just to see if anything will be left over from paying the first lien to pay them and in doing so find out/determine the value of asset? Also is there a statute of limitations for liens from a judgement?
Ok great thank you for the continued detailed explanations i really appreciate it. So is there a statute of limitations for a lien acquired from a judgment? Would the lien expire if the judgement was not renewed?
Great thanks again!
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).